All Settled? A study of legally binding separation agreements and private ordering in family law in Scotland

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The research will add to our understanding of private ordering in the family justice system; focusing in particular on the use of Minutes of Agreement (MoAs) in Scotland but with broader relevance for other similar jurisdictions. Earlier research into the contents of a nationally representative sample of MoAs was conducted in the 1990s (Wasoff et al 1997). Since then, there have been a number of significant changes making it timely and policy relevant to undertake comparable research. Scots family law provides a statutory framework which encourages the use of private ordering. The Family Law (Scotland) Act 1985, particularly s.9, sets out principles which guide the courts in awarding financial provision on divorce. By reducing judicial discretion, making 'the rules of the game' clear and giving only limited judicial power to vary or set aside the terms of an agreement, it encourages parties to reach their own settlement without recourse to the courts. Whilst this legislation was in force at the time of the 1996 research, it was relatively new. Since then there have been many judicial decisions regarding the s.9 principles, and family lawyers have become experienced in their operation. In addition, several other Acts have since come into force which similarly favour private ordering. The Child Support Act 1991 and the Children (Scotland) Act 1995 encourage consensual arrangements. The Civil Partnership Act 2004 and the Family Law (Scotland) Act 2006 have extended the scope of family law to include adult relationships other than marriage, thus widening the range of couples who might seek to regulate their relationship, and in particular its breakdown, by means of MoAs. This research will assess the impact of these statutory reforms on the extent and nature of the use of MoAs.There have also been significant shifts in the practice of family law, e.g. in the greater use of mediation and collaborative law which, together with changes in the availability of legal aid, have transformed the legal landscape. In recent years, Scots family law has been largely codified, simplifying and modernizing the legal framework. These reforms represent a well developed and clearly defined system of family law but many individuals do not use these legal rules within a formal, court-based, judicial forum; instead they use private ordering as a means of resolving disputes or dealing with the consequences of changing family relationships. With the predominant focus on negotiation and consensus, we just don't know what happens in that context and how the principles and provisions of these statutory measures are reflected in private agreements. This research will explore the impact of these changes on the use of agreements, the detailed nature of their content, and the experiences of the parties involved. It will also consider how much the broader objectives of the statutory framework of family law are observed in private ordering, and how much private ordering is carried out 'in the shadow of the law'. The research is in two parts. The first will identify and collect information from a nationally representative sample of about 600 MoAs, from a recent year. The second will follow up about 30 of these agreements with in-depth telephone interviews with one of the parties involved to explore their experience of reaching agreement and meeting its terms. Telephone interviews will also be conducted with about 10 to 15 solicitors who drew up agreements. It will provide a significant data source specifically in respect of the extent and nature of MoAs in family law in Scotland. More broadly it will contribute to an understanding of the operation of private ordering in the context of familial relationships and the extent to which the individual parties and their agreements are influenced and informed by the changes in legal provisions and practice outlined above, in turn helping to inform the development of future policy and practice.